Bolkestein secures slim Council Majority for Unlimited Patentability

The Irish presidency has secured political approval for a new draft of the controversial software patents Directive in a meeting of the Council of Ministers today (2004-05-18). This draft is subject to formal approval at the next meeting of the Council, probably at the beginning of June. The draft removes all limitations on patentability that the European Parliament had voted for in September 2003.

Spain (8) expressly voted against the proposal. Belgium (5), Italy (10) and Austria (4) abstained from the vote. Denmark (3) seemed uneasy, expressing unhappiness with the trivial modifications that the voting draft showed, but in the end did not stand against the Presidency's pressure for support.

That made 27 votes refusing to support the text. Had Germany kept its promise to at least abstain, the 37 votes needed to block it would have been achieved, and surpassed by votes from countries like Poland who had apparently been instructed to follow the Germans.

UPDATE: It now appears that Poland (8) would also have abstained, making 35 votes; but that its vote was not called once qualified majority had been obtained. Details.

In the initial round of discussions SE, UK, FR, NL, CZ and HU spoke in favour of the Irish proposal.

However a trivial edit presented as a "compromise" by the Commission was apparently enough to bring the German delegation around, and with them the Eastern Europeans whose opposition had been based on the German position.

That left ES voting against the proposal, and BE, IT, and AT refusing to approve it.

On the key issue of what should and should not count as "technical," and therefore patentable, the Germans had originally proposed the additions shown thus:

2b. A technical contribution means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether these are accompanied by non-technical features, whereby the technical features must predominate. The use of natural forces to control physical effects beyond the digital representation of information belongs to a technical field. The mere processing, handling, and presentation of information do not belong to a technical field, even where technical devices are employed for such purposes.

The Commission "compromise" was to cut this to:

2b. A technical contribution means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether these are accompanied by non-technical features.

i.e., so the only effect was to insert the word 'new'.

A few more cosmetic changes to Article 4 and Recital 13 were proposed (which bloat the text and have no effect whatsoever on whether any patent claim will be granted or not, but simulate an intention to limit patentability).

For whatever reason, this was sufficient to win over the German delegation.

Although sufficient to convince the Ministers, the text remains as uncompromisingly supportive of EPO-style software and business method patents as the original Irish draft.

To reinstate amendments in the European Parliament in a second reading requires absolute majorities -- absent !MEPs are counted as pro-Council.

Alexander Esslinger, Ficpi (Patent attorney association, pro-Patent)

On Tuesday 18th May , the Competitiveness Council voted with a (thin) qualified majority in favour of the proposal of the Irish presidency which is in general in line with the original Commission draft and reflecting the current EPO practice, with three amendments from Germany and watered down (in our favour) by the Commission. Germany then voted in favour of the proposal ...